On Tuesday, President Barack Obama nominated Second U.S. Circuit Court of Appeals Judge Sonia Sotomayor, 54, a graduate of Yale Law School and a liberal rewriter of the Constitution, to replace Justice David Souter on the U.S. Supreme Court. The pick is a bad one primarily because Sotomayor is the living embodiment of legal realist theory: She makes decisions based on her own political and social experiences.
As Sotomayor puts it, judges should consider their "experiences as women and people of color” while hearing cases, and those experiences should "affect our decisions.” And Latinas are especially qualified to sit on the Supreme Court, according to Sotomayor: "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life.”
In short, Sotomayor believes that law, like beauty, is entirely in the eye of the beholder. It is therefore of vital importance which beholders are sitting on the Supreme Court. Judicial philosophy is irrelevant, in this view; the only true judicial philosophy is personal philosophy.
So Sotomayor is a rotten pick, if not an unexpected one, by President Obama.
But there is something slightly more disturbing going on. Sotomayor wasn't chosen solely for her liberal judicial philosophy, although that was a prerequisite. She was chosen for her status as a Latina woman. As Stuart Taylor of National Journal writes, "If Republicans attack Judge Sotomayor's more controversial actions, they risk provoking a backlash among Hispanic voters, who have already been moving into the Democratic column in droves.” Following on the heels of President Obama's election, which was largely about his status as a black man, we have entered a period in which politics is becoming more, not less, racial in nature.
With the election of Obama, many Americans believed that racial polarization in the country was over. White Americans in particular assumed that Obama's election would be a transformative moment, effectively capping America's centuries-long odyssey toward racial equality.